Regulation 4(9) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”) grants the Secretary of State what has been described as a “residual” power to direct that a development be treated as an EIA development where its description meets one or more of the descriptions of development set out in Schedule 2 to the 2011 Regulations, even though the applicable thresholds and criteria also set out there are not met. The effect of such a direction is to require the submission of an environmental statement by the applicant for planning permission, and the carrying out of an environmental impact assessment.
In Threadneedle Property Investments Ltd v Southwark London Borough Council [2012] EWHC 855 (Admin); [2012] PLSCS 82 the proposed development was “an urban development project” for the purposes of Schedule 2, but it failed to meet the applicable threshold or criterion in that its site did not exceed 0.5 hectares. The claimant, an objector, wrote to the Secretary of State requesting him to call in the application for his own decision under section 77 of the Town and Country Planning Act 1990, and on doing so to make a direction under the predecessor provision to regulation 4(9) of the 2011 Regulations.
Regulation 4(9) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the 2011 Regulations”) grants the Secretary of State what has been described as a “residual” power to direct that a development be treated as an EIA development where its description meets one or more of the descriptions of development set out in Schedule 2 to the 2011 Regulations, even though the applicable thresholds and criteria also set out there are not met. The effect of such a direction is to require the submission of an environmental statement by the applicant for planning permission, and the carrying out of an environmental impact assessment.
In Threadneedle Property Investments Ltd v Southwark London Borough Council [2012] EWHC 855 (Admin); [2012] PLSCS 82 the proposed development was “an urban development project” for the purposes of Schedule 2, but it failed to meet the applicable threshold or criterion in that its site did not exceed 0.5 hectares. The claimant, an objector, wrote to the Secretary of State requesting him to call in the application for his own decision under section 77 of the Town and Country Planning Act 1990, and on doing so to make a direction under the predecessor provision to regulation 4(9) of the 2011 Regulations.
The Secretary of State chose not to call in the planning application, and declined to consider whether a direction should be made. The local planning authority later granted planning permission. The claimant sought judicial review of the Secretary of State’s decision, contending that he had erred in law by not considering whether he should make a direction.
The court rejected the claim holding that there was no general obligation on the Secretary of State to consider making a direction in any specific case. The onus was on anyone seeking such a direction to prevail upon him, in clear and unambiguous terms, to make one. When this happened, the Secretary of State was empowered to make a declaration, but he was not under a duty to do so. Furthermore, it was a power to be exercised only in an exceptional case. Here, the request for a direction was coupled to a request for a call in, and it was clearly conditional upon the request for a call in being accepted. There was no effective application to him to exercise his power. Accordingly, the Secretary of State had not erred in law.
John Martin is a freelance writer
